Gregorio Mesa Cuadros
Ciudad Universitaria, Bogotá, D. C., octubre de 2018
CAPÍTULO 1
SOME DEBATES IN ENVIRONMENTAL CONFLICT AND ENVIRONMENTAL RIGHTS IN LATIN AMERICA AND COLOMBIA*
GREGORIO MESA CUADROS**
There cannot be a clearer demonstration of anything, than several nations of the Americans are of this, who are rich in land, and poor in all the comforts of life; whom nature having furnished as liberally as any other people, with the materials of plenty, i.e. a fruitful soil, apt to produce in abundance, what might serve for food, raiment, and delight; yet for want of improving it by labour, have not one hundredth part of the conveniences we enjoy: and a king of a large and fruitful territory there, feeds, lodges, and is clad worse than a day-labourer in England.
JOHN LOCKE, The Second Treatise of Civil Government
The question before us is whether the class of persons [Negro people or slaves] described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
SUPREME COURT OF THE UNITED STATES, Dred Scott v. Sandford
The main problems of the contemporary world have to do with the way human beings relate to the environment. This relationship is culturally diverse and depends on how human societies have built concrete and specific relationships with their natural environment and other human communities.
The specific use of nature by cultures is related to the concrete forms of how the law defines whom the environment belongs to or to which it belongs, that is, of legal forms pre-established by law and new ones that human beings, States, corporations or, especially, the academy, prescribe on how the environment can or should be used or appropriated.
Environmental conflict is the concept I use to identify the differences, contradictions and oppositions between various kinds of use and appropriation of nature and is the result of the actions of one, several or many human beings or groups that improperly or unjustifiably appropriate the Nature, which belongs to another, to several, many or all subjects of law.
In the last five centuries, companies and States have been illegally appropriating the Nature from other nations and States, seeking to legitimize this appropriation with new theories of law. The University usually serves these forms of appropriation, either because the theories originate there or because companies and States with power finance studies that say or formulate theories that these companies and those States require to appropriate what is not theirs.
For the above, the right of appropriation corresponds to theories of liberal rights, which have in civil and political rights the central axis in the idea of freedom over property and unlimited appropriation of nature. Even in contemporary times, social, economic, cultural, collective and environmental rights are considered mere aspirations that can be accepted in the future since there are multiple theories of rights, the radical is imposed despite the rivers of ink that go in favor of other alternative theories.
To present this theory, I have grouped this text into two parts. The first is a brief analysis of environmental conflict from the political and legal point of view and the second, the basis of a theory of environmental rights, which discusses theories of rights that contributes to the resolution of the environmental conflict, the search and concretion of environmental justice, especially in the Latin American and Colombian sphere.
THE ENVIRONMENTAL CONFLICT
In this section, we will develop our approach from two positions. First, the inadequate conceptualization of environmental problems and conflicts and an analysis of their main causes and consequences to overcome the deficit of conceptualization and foundation of this conflict and; second, the formulation of a practical theoretical proposal from a systemic, comprehensive and global political point of view, that is, environmental in a strict sense.
Conceptualization, reasons, and arguments
As mentioned before, the environmental conflict is the result of the inadequate appropriation of nature by a few human beings. A pertinent conceptualization should start by specifying what they are and why there are conflicts that we call environmental (Mesa Cuadros, 2015a).
The majority of the environmental problems, such as climate change, desertification, exaggerated and widespread contamination of water, soil and atmosphere, the unlimited extraction of the various elements of nature and the intensive reduction of biological diversity, are the result of these inadequate and illegitimate ways of using and appropriating nature. Therefore, peoples, societies and communities affected by it must organize, demand and claim a different use of nature and demand respect for their traditional practices and customs, different from the way modern capitalist society has established how the environment can and should be used and appropriated.
These juridical forms of use, access and modern appropriation of Nature correspond to liberal or modern theories of law that start from the idea of the unlimited human capacity to access nature and that any barrier (natural or artificial) can be transformed by a theory of law that justifies the appropriation. In history, appropriation could be justified by the right of conquest and war (Ginés de Sepúlveda, 1941); by civilizations against barbarism and exploitation against non-use (Locke, 1690; Montesquieu, 1906), the appropriation of common goods in the English forest fence (16th century) or the new tragedy of the commons by Hardin (1968). In the twentieth century, appropriation also affected plant patents, animals and humans regarding transgenesis or cloning. In recent years, laws of appropriation have affected the radical transformation of life through the nanotechnology of synthetic biology. The “sustainable development” in Rio (United Nations, 1992) or “green economy” in Rio+20 (United Nations, 2012) are the main ways in which capitalism has reoriented its way of speaking about “going green” or “dressing green”, and what should or shouldn’t be considered “green” or consevationalist.
We must remember that environmental conflicts are part of the set of elements that manifest themselves from the tremendous global crises and the injustices of re-distribution on the elements or components of the environment. These injustices originate in the absence of equity in generational terms and with other beings of nature, evidencing not only the type of inequalities linked to the distribution of environmental and natural goods, but also those loads of pollution, deterioration, degradation, displacements and ecosystemic and social damages from which all kinds of demands emerge in different sectors of the population.
Environmental problems are impossible to deny today. Pollution, the destruction of biodiversity, climate change, the gradual disappearance of tropical forests, increased greenhouse gas emissions, acid rain, deforestation, among others, are phenomena that we hear talk daily, besides